Ethical Philosophy. Thinking Clearly in a World of Nonsense

Transcription

1 Ethical Philosophy Thinking Clearly in a World of Nonsense Topic for Examination on May 1, 2016 Citizens United It Sounds Reasonable! Summary Democrats, progressives, Hollywood celebrities, 80% of the voters and George Clooney condemn it as disastrous, even if they don t know what it is (Clooney called it a law. ) Republicans, conservatives, the Chamber of Commerce, NRA and American Civil Liberties Union hail it as a defense of free speech. It says you cannot have too much free speech. That seems reasonable. But the consequences have just made a bad situation worse. Maybe it philosophically correct, but practically wrong. Perhaps it brings up the ancient question, what is more important, your philosophy or your country? 1

2 What It Did It overturned portions of the Bipartisan Campaign Reform Act of 2002 (BCRA) often called McCain Feingold. So NOW, corporations and unions may 1. contribute unlimited amounts of money 2. to PACS 1, but not directly to candidates or political parties 3. to attack or promote particular political candidates Although individuals are limited to how much they can give to a campaign, organizations can give as much as they like, out of their general treasury. Airing Dirty Laundry This case caused a public crack in our usually stone-faced, priest-like judges 2. On the very narrow question put to the court, Roberts >>> got a tentative agreement among the conservative five. Soon to retire Justice Souter >>>> wrote the Minority Opinion., It accused Roberts of using his position to manipulate decisions 3. So Roberts, afraid that this would harm the credibility of the court, withdrew his opinion and reheard the argu- ments. Roberts had Kennedy >>> pen a much wider decision. Souter now retired, the dissent was written by Stephens>>> He was so angry, he read portions of his 90 page 4 dissent aloud in the ses- sion. Roberts said it was airing the court s dirty laundry. During the State of the Union Address, President Obama condemned it as opening the floodgates of special interest, including foreign corporations. Alito >>> frowned and mouthed not true. Scalia and Thomas snarled that it had not gone far enough. Sotomeyer looked none too happy with any of the boys. 1 political action committees 2 The following is from Jeffrey Toobin s article in the NY Times based probably on leaks from the court. 3 according to Jeffery Tobin s article in the NY Times 4 The majority opinion was only 30 pages. 2

3 Background Koch Brothers funded Citizens United PAC petitioned the U.S. District court to stop the Federal Election Committee from enforcing BCRA. It provisions forbade CU from airing an anti-candidate movie (Hillary: The Movie). (BCRA forbade corporations and unions to pay for electioneering 30 days before a primary or 60 before an election.) A three judge panel refused CU s request because Hillary was clearly made for electioneering. The Supreme Court heard the case and struck BCRA portions down with the usual 5-4 difference over judicial philosophy. (For more background, see Later Reflections below.) There were the usual suspects, people who hate America, democracy and the Constitution. Those who want to wreck the country and see it in smoldering ruins. You have to decide which way to point that finger. McCain & Feingold The Majority s Opinion (written by Kennedy) The First Amendment does not distinguish between individuals and corporations, or by the identity of the speaker. Free speech means free speech and Congress can t restrain it, so there! We are all free to talk as much as we want about elections. Sure, some people have more money to spread their opinions through the media, but so what? The American people are not fools. They don t believe nonsense no matter how many times they hear it. They can tell truth from lies. There is no such thing as too much free speech. That sounds reasonable. 3

4 In More Detail, if you want it. Censorship Of Books The Majority Opinion BCRA is so broad that it would allow the censorship of books, newspapers, blogs, stuff on Kindles, secret hand gestures, anything. Besides, the First Amendment does not distinguish between different types of speakers, such as humans, corporations, partnerships, etc. Without a constitutional distinction, all speech must be allowed. The Dissent It s not about speakers, it s about funding sources. Sebastian Twit The problem BCRA addressed was not the type of media, it s how loudly it can be said and when. Blasting the public with lies over mass media 5 3 days before a primary is the problem. Publishing a book or pamphlet will not flood the voters, it doesn t work that way. Flooding the public takes mass media, TV, radio and robo-calls, etc. The issue is not which media, it s the overwhelming amount. Congress Is Not in the Business of Making Elections Seem Fair The Majority Opinion - We should not allow the government to interfere in the marketplace of ideas by rationing speech. It is not up to the legislatures to create a sense of fairness. The Dissent We the people refers to people, not legal fictions like corporations. Congress can regulate the speech of legal fictions all it wants. This court recognizes limitations on speech, such as fighting words, shouting fire in a crowded theater, obscenity, hate speech, etc. But a democracy cannot function if its members believe laws are being bought and sold. This opinion threatens to undermine the integrity of elected institutions. Sabastian Twit The Majority is begging the question. The question IS can Congress try to make things seem fair. It had been settled as YES. This majority wanted to reverse it. To use their new rule as a justification is like quoting the Bible to evidence of the Bible s authenticity. 5 Push polling as in if you knew that John McCain had an illegitimate black child, would you affect your vote? 4

5 Congress Cannot Determine WHO is Corrupting the Political Process The Majority - Congress has the right to prevent corruption and the appearance of corruption, but not to determine what is causing the corruption, such as large political expenditures or corporations. An earlier decision (Austin v. Michigan) held that Congress could try to reduce the distorting effect of big money. (But this majority overruled that decision.) The Dissent What? Without the right to decide what is corrupting, the power to prevent it is meaningless. Contributions Are Not Bribes, Access is Not Votes The Majority Opinion - Giving money to a candidate is not buying his vote, it s only giving the contributor access to the law maker. The Dissent - Stephens points out that the majority ignores threats other than obvious bribery (quip pro quo) and the damaging effect of its appearance of corruption. After all, corporate boards don t and cannot spend money for reasons other than to make money. That IS the purpose of corporations after all. Their contributions are for profit for themselves and should be viewed as business transactions. That s worth repeating: contributing to a politician is a business transaction. Sebastian Twit claims that the whole sleight of hand about not buying votes but only gaining access is flatly dishonest. Corporations don t want access, they want action, action that will make them money. They re not trying to make friends. Does the majority expect us to believe that the Koch brothers are lonely? To believe access is not action is like saying I m willing to pay for a key to this room, even though its empty and I don t want anything, just to be able to get in, for some reason. 5

6 Human beings however, have many motives other than financial profit. They may contribute out of patriotism, to get government help for a cause that doesn t profit them, etc. But of course when an individual gives money to a candidate s campaign, he expects the politicians do something too. So that whole canard about its not a bribe but only access is really just a ruse to disguise the truth that it s a bribe. Too Many Problems To Salvage Majority The BCRA exempts media corporations from its prohibitions on all corporations. That creates so many problems that the entire act must be overturned. The disclosure requirement however, still allows the voters to determine who is paying for the ads. From that, they can surmise whether the ad is telling them the truth Scalia harrumphed. >>> Sebastian Twit Sure, Herb and Thelma of De Moines see an attack ad on TV. They ask I wonder if it s true? So they research the corporate contributors to the PAC and its affiliation with a candidate, which is supposed to not exist. Somehow they find that it is funded by the other candidate s supporters and decide that is not true. Sure, that happens all the time. Free Speech Should Not Require a Lawyer Majority Because of the complexity of the BCRA, a contributor will have to hire a campaign finance lawyer, a demographic research team and other experts to determine whether it can run an ad. Small corporations cannot afford all that. It has a chilling effect on free speech. Speech that requires all that, is not free. Dissent The Majority is focusing on small corporations, but they are not the problem. It s the big corporations that are swamping everyone else. Besides, corporations are not people as in We the people. They are immortal and can therefore accumulate unlimited wealth. The have limited liability, no morality, cannot be jailed and have no purpose outside of making money. 6

7 Sebastian Twit Citizens United PAC was intentionally trying to violate BRCA (air an attack ad with 60 days of an election) in order to get a case before the Supreme Court. That tactic is common, even standard behavior for political groups. Otherwise the statute is as clear as any other. How naïve do they think we are? McCain Feingold Crushes the Speech of Small Corporations Majority - By clamping down on all corporations, its smothers the speech of small corporations. For example, Edna s Flower Shop, CORPORATION is forbidden to contribute, just like Koch Industries, Corporation. Dissent What about the political opinions of the shareholders? Big corporations have millions. Many are hidden in mutual funds. Most of them have no idea what their investment money is being spent on. Sebastian Twits BCRA doesn t smother small corporation speech, just the opposite. Small corporations do not swamp the media with ads, only large corps do that. Koch Industries can spend $ 100 million on ads to flood the media, drive media prices up and smother Edna s opinions. The Public Deserves All Available Information Majority - Corporate spending gives the public all available information. The voters need all the information they can get. The Dissent The typical voter can only assume so much information during an election cycle. Rich advertisers swamp small ones by their shear volume. Sebastian Twit notes that corporate speech is not designed to research and educate the public. It s to convince the public of a very narrow perspective. 7

8 The Other Usual Stuff Majority - Then there was the usual stuff about judicial restraint (judges not making up new laws like activists judges ), respecting prior decisions (stare decisis) and respecting the intent of the Framers (originalism.) Going even farther to the right, Thomas called for making names of contributors secret. He was worried that Koch Industries might be threatened. There is no such thing as too much secrecy? Sebastian Twit notes that Roberts admitted they were not showing judicial restraint; he wrote about the difference between judicial restraint and judicial abdication. Scalia admitted that in this case, the intent of the Framers was irrelevant. Not to mention that the intention of the framers is ignored by forbidding the state legislatures to regulate their own election process. As for stare decisis, the majority overruled several previous decisions. Same Old Legal Strategy Sebastian Twit We see this strategy by conservatives all the time. We have a REAL problem in the PRESENT but we cannot fix it because of a POTENTIAL problem in the FUTURE. Sabastian Twit points out that under trust law, no trust can last forever 6. It would simply accumulate all the wealth on earth. A corporation however, is under no such limitation. How did that happen? What do you think? The bull shit gets so deep, you have to sprout wings to fly above it. Sebastian Zebadiah Twit, 6 rule against perpetuities. 8

9 Later Reflections April 287, 2016 Prohibition On Individual Contributions The court did not strike down the limitation on individual contributions, wait, what? Individuals are limited but giant corporations are not? So Sheldon Adelson cannot make gigantic contributions to campaigns himself. Then why do politicians flock to see him? It s his CORPORATION that doles out the millions? Is that a distinction without a difference? So, if I have a $ 100 million to donate, I can t donate it myself. But all I have to do is set up a Super PAC, put the money in that, then do whatever I want through the PAC? Current Facts on the Ground I. Congressmen spend 80 % of their time fundraising to pay for their political campaigns. II. By employing 2 ½ more lobbyists than there are congressmen, special interest groups get whatever they want from congress. The wishes of the people are completely ignored. For example, everyone wants Medicare to negotiate drug prices with pharmaceutical companies, but it s simply not possible. All the congressmen need and or afraid of big pharma lobbying money. III. Funded with lots of money, campaigns can use untrue attack ads immediately before elections. For example, immediately before a primary, G. W. Bush told Southern voters that McCain had an illegitimate black child 7. Because of Citizens United, such behavior is legal. The majority held that the current situation does not even create an appearance of corruption, much less a risk of corruption. As for actual corruption, that s ridiculous! 7 He had adopted an orphan from Asia. But if he did have an illegitimate child, raising it would be admirable, right? And what difference does a child s skin color make anyway? There is just so much wrong with G. W. Bush, the guy is amazing. 9

10 Further Background If You Care It really started with Citizens United petitioning the FEC to stop the showing of Michael Moore s movie Fahrenheit 911. CU claimed that it was electioneering but the FED disagreed. The FEC ruled that Fahrenheit was not make for electioneering purposes, but was a for-profit actual movie. Based on that, CU set up a film studio and made a film criticizing Hillary Clinton called Hillary The Movie. CU wanted to pay for it to be broadcast on cable immediately before an election in The FEC forbade that because Hillary The Movie was made for the purpose of electioneering and it was within 30 days of the primary. Koch Industries is a privately owned corporation, inherited by four Koch brothers. They are strict libertarians. PAC s are supposed to NOT BE COORDINATED with any specific candidate, but there is no enforcement mechanism. Therefore, they are. The Majority was composed of Roberts, Alito, Scalia, Thomas and the usual swing vote, Kennedy. It s Getting Pretty Bad When comedians make jokes, on broadcast TV, about Supreme Court corruption and everyone gets them! Then the comedian legally sets up his own PAC, to screw the public, promotes it as a joke, and everyone laughs. Making a better tomorrow, tomorrow. 10